Untitled Texas Attorney General Opinion

February 13, 1970 Honorable Ben Barnes Opinion No.M-574 Office of the Lieutenant Governor State Capitol Building Re: Authority of the Parks Austin, Texas 78711 and Wildlife Commission to expend funds for the purposes authorized in the Parks and Wildlife appropriation item num- ber 23, of the General Appropriation Bill, 1970- 71 biennium, and related Dear Lieutenant Governor Barnes: questions. Your request for an opinion asks the following questions: "1. Does the Parks and Wildlife Commission have authority to expend funds,for the purposes authorized in Parks and Wildlife appropriation item number 231 "2. From what appropriation fund or funds can Parks and Wildlife Department appropriation item number 23 be financed? "3 . If Parks and Wildlife appropriation item number 23 is construed as being made from Special Game and Fish Fund Number 9, can money from that fund legally be spent for the purposes authorized in appropriation item number 231 "4. If the Parks and Wildlife Commission has the authority to expend money from its ap- propriation for the purposes spelled out in ap- propriation item number 23 -- whether the financ- ing comes from Special Game and Fish Fund Number 9 or from any other source -- can the water ex- change pass be used for the passage of boats?" We quote the following from the appropriation to the Parks and Wildlife Department by House Bill 2, Acts of the 61st -2737- lion.Ben Barnes, page 2 (M-574) Legislature, 2nd C.S., 1969, at pages 111-117, 118: "For the Years Ending August 31, August 31, 1970 1971 “23. For preparation of de- tailed plans and specifi- cations, and all other necessary costs in con- nection with first phase construction of a water exchange pass (and bridge) between Corpus Christi Bay and the Gulf of Mexico ad- jacent to Mustang Island according to preliminary engineering plans $ 1,500,000 $ 1,500,000 GRAND TOTAL, PARES AND WILDLIFE DEPARTMENT $20,069,313 $19,004,191 Method of Financing: General Revenue Fund $ 5,169,772 $ 4,354,735 State Parks Fund No. 64 662,280 730,120 State Parks Special Mineral Fund No. 267 6,595 6,595 Special Game and Fish Fund No. 9 11,186,501 11,334,484 Land and Water Recreation and Safety Fund No. 63 1,800,000 1,800,000 Varner Hogg Trust Account NO. 961 6,765 6,765 Special Boat Fund No. 59 300,000 300,000 Federal Land and Water Con- servation Fund No. 223 937,400 471,492 Total $5 $19,004,191" It is noted that Item 23 does not specify from what fund or funds said appropriation is made. Likewise the "method of financing" provision relating to the appropriation does not indicate which funds are to be used to finance any particular item of appropriation, We therefore~conclude that whether an item of appropriation is paid out of.the General Revenue Fund, -2738- Hon. Ben Barnes, page 3 (M-574) State Parks Fund No. 64, State Parks Special Mineral Fund No. 267, Special Game and Fish Fund No. 9, Land and Water Recreation and Safety Fund No. 63, Varner Hogg Trust Account No. 961, Special Boat Fund No, 59, or Federal Land and Water Conservation Fund No. 223 is dependent upon the purpose for which the item of appropriation is made. Item 23 is for the purpose of pro- viding "a water exchange pass (and bridge) between Corpus Christi Bay and the Gulf of Mexico adjacent to 'MustangIsland." Moneys appropriated by the Legislature may be ex- pended for the purpose specified , provided the purpose is for governmental use or purposes as distinguished from private purposes. State v. City of Austin, 160 Tex. 348, 331 S.W.Zd 737 (1960); Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761 (1920): Road District No. 4, Shelby County v. Allred, 123 Tex. 77, 68 S.W.Zd 164 (1934); Jefferson County v. Board of County and District Road Indebtedness,,143 Tex. 99, 182 S.W.2d 908 71944); City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 918 (1923). It is 'ouropinion that the purpose specified in Item 23 of the appropriation to'the Parks and Wildlife De- partment is for a governmental purpose or use as distinguished from a private use. You are accordingly advised in answer to your first question that Item 23 may be expended by the Parks and Wildlife Department for the purposes therein expressed. The Parks and Wildlife Department was created by the provisions of Article 978f-3a, Vernon's Penal Code. This article provides that the Special Game and Fish Fund shall be used for the purposes provided in the act and for purposes provided by law, and also prohibits the use of money heretofore authorized for park purposes to be expended for any other purpose than the operation, maintenance or development of State parks. The Special Game and Fish Fund was created by the provisions of Article 438633,Vernon's Civil Statutes. Section 3 of Article 4386b provides: "Sec. 3, The Special Game and Fish Fund shall be used for the aggregate purposes for which the Special Game Fund, the Special Fish Propogation and Protection Fund, ,the Fish and Oyster Fund, the Sand, Shell and Gravel Fund, and the Lake Worth-Eagle Mountain Lake Fund is now directed by law to be used," In view of the foregoing,,it is our opinion that whether Item 23 of the above referred to appropriation is to be expended from the Special Game and Fish Fund depends upon -2739- . . Hon. Ben Barnes, page 4 (M-574) the use intended to be made by the Parks and Wildlife De- partment of the "water exchange pass." In this connection it is to be noted that House Bill 952, Acts of the 56th Legislature, R,S., 1939, Ch. 84, of the Special Laws (Article 978f, note V.P,C.) makes it unlawful: II . . . for any person to use, operate, sail, anchor, tie, or moor to the bank any boat, sail- boat, motorboat, skiff, barge, raft, or other floating device, or to place any post, piling, obstruction, wire, rope, cable, net or trap, in or upon the waters of any natural or artificial pass which is now or may be hereafter opened, re- opened, dredged, excavated, constructed, and maintained, by the Game, Fish and Oyster Com- mission [now Parks and Wildlife Department] of the State of Texas as a fish pass, between the Gulf of Mexico and any inland bay, within a dis- tance of two thousand, eight hundred (2,800) feet inside of such pass, measured from the mouth of said pass where it empties into or opens upon the Gulf of Mexico." (Brackets and emphasis ours.) You are therefore advised in answer to your second and third questions that if the Parks and Wildlife Department intends to maintain the "water exchange pass" as a fish pass, such funds may be expended from the Special Game and Fish Fund No. 9; otherwise, such item of appropriation should be expended from the General Revenue Fund. In answer to your fourth question, if the Parks and Wildlife Department maintains the "water exchange pass" as a fish pass, such pass cannot be used for the passage of boats. On the other hand, if the "water exchange pass" is not main- tained by the Department as a fish pass, such pass may be used for the passage of boats, SUMMARY Item 23 of the appropriation to the Parks and Wildlife Department for construction of a "water exchange pass" may be expended for the purposes specified in Item 23 and such expenditure is pay- able from either the Special Game and Fish Fund No. 9 or the General Revenue Fund, depending upon whether such pass is intended to be maintained by the Department as a fish pass. If it is to be -2740- .., , Hon. Ben Barnes, page 5 (M-574) maintained as a fish pass, such item of appro- priation is payable from the Special Game and Fish Fund; otherwise it is payable from the General Revenue Fund. If the "water exchange pass" is maintained by the Department as a fish pass, such pass may not be used as a passage for boats. If it is not maintained by the Depart- ment as a fish pass, it may be used as a passage for boats. . MARTIN y General of Texas Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Roger Tyler Houghton Brownlee Jack Sparks Monroe Clayton MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -2741-